MB (a patient), Re

We have before us an application by (GH “the applicant”), purporting to act not only on his own behalf but also on that of his mother who is an old lady suffering from Alzheimer’s disease (“the patient”). The application is for permission to appeal from an order of Sir Francis Ferris sitting as a judge nominated under Part VII of the Mental Health Act 1983 to hear the appeal of the applicant against a decision of Assistant Master Prime in the Court of Protection dated 4 August 2004, by which it was ordered that a statutory will be executed on behalf of the patient. The effect of that will was to appoint the patient’s receiver, Mr Spiers, a partner in Withy King, Solicitors, as executor of the patient’s will in place of the applicant. By his application, the applicant applies also for an order expediting the hearing of this appeal.

The material provisions of the statutory will simply reproduced the dispositive provisions of the patient’s former will, which were for equal division of the estate between her three children. In addition the applicant was replaced as the executor by Mr Spiers, a “hotchpot” clause was included administrative provisions in the form published by STEP (The Society of Trust and Estate Practitioners) were also included.

The application relates to a second appeal.

That being so, on the assumption that CPR Part 52.3 applies to this case, the appropriate test for permission would be that provided for in CPR 52.13 (2) i.e. that the appeal must raise an important point of principle or practice, or that there must be some other compelling reason why the Court of Appeal should hear it. If that were the applicable test then, on the material presently before the court, it is far from clear that this would be an appropriate case for permission.

The applicant failed to appear before us on the hearing of this application. However, thanks to the helpful submissions of counsel, Mr David Rees, instructed by the Official Solicitor (who appeared in order to assist the court on this point pursuant to an order of Chadwick LJ dated 17 June 2005), I have come to the conclusion that, by reason of what appears to be a lacuna in the CPR, the statutory provisions and machinery for appeal to this court from the decision of a judge nominated under Part VII of the Mental Health Act 1983 fall outside the ambit of CPR 52.3 and the applicant therefore does not need the court’s permission to pursue his appeal.

Before proceeding to set out my reasons, I state the following facts by way of background.

The applicant lives with the patient and undertakes all her day-to-day care. He was named in the patient’s will, executed in 1981, as her sole executor. The terms of the will divided the patient’s estate equally between her three children, a legacy to her mother having fallen away as a result of the latter’s death.

The patient has a substantial estate, comprising real property and cash investments in the United Kingdom, Spain and the Channel Islands as well as holdings in a family business.

Because of discord between the applicant and his siblings, as well as concerns about the patient’s financial affairs, a receiver was appointed by the Court of Protection on 15 April 2003. Withy King were a local firm of solicitors on the panel of the Public Guardianship Office. Prior to his appointment, the applicant was informed of the application for a receiver. He raised objections to the appointment of a professional receiver, principally on financial grounds. However he raised no objection to the identity of the proposed receiver. On learning later, however, that Withy King had, years before, acted for plaintiffs in a claim brought against the patient and the applicant as defendants, he refused to recognise a partner in the firm as the patient’s receiver or to provide any of the information required by the receiver.

In the light of the size of the estate and the history of discord between the siblings, the receiver considered that it was not appropriate for the applicant to continue to act as the patient’s sole executor and applied to the Court of Protection for a statutory will to be executed on the patient’s behalf in terms identical to her earlier will, save that applicant was to be replaced as executor, a hotchpot clause included, and the STEP administrative provisions incorporated.

The receiver’s application was heard on 4 August 2004. Assistant Master Prime considered that it was in the best interests of the patient for a new will to be executed at once and that, in the light of the inter-family disputes it would be appropriate that a professional be appointed as executor. He considered that the receiver would be well placed to carry out that role as he was already in possession of a good deal of information and the appointment was likely to save costs. He therefore appointed Withy King as executors.

The applicant appealed the decision of Assistant Master Prime to the nominated judge under s.105 (1) of the Mental Health Act 1983, the appeal being heard and dismissed by Sir Francis Ferris on 21 February 2005.

Pending the hearing of this appeal, proceedings continued in relation to the receivership, because, due to his impending retirement, Mr Spiers made application to the Court of Protection for one of the other partners in his firm to be appointed as receiver in his place. The applicant made a counter application for a change of receiver.

Besides dismissing the appeal of the applicant, Sir Francis Ferris further directed that, following consideration of the pending applications in relation to a change of receiver, consideration should be given to an application being made to the Court of Protection for the execution of a statutory codicil containing a clause appointing a professional executor unconnected to Withy King and deleting the hotchpot decision in the statutory will. He further ordered that, if no such application were made by 21 May 2005, the matter should be mentioned to the Master of the Court of Protection with a view to his ordering execution of the codicil, deleting the hotchpot provision in any event.

In fact the application to change the receiver came before Assistant Master Prime on 14 April 2005, by which time The applicant and his sister had been making efforts to resolve their differences and were able to make proposals for their own appointment as joint receivers on an interim basis, with a review to be fixed after a period of three or six months in which it could be ascertained whether the third sibling (the applicant’s brother in Australia) was content with the arrangements. Assistant Master Prime considered this a sensible way forward and appointed the applicant and his sister interim receivers.

At that time, it seemed clear that any appeal by the applicant from Assistant Master Prime’s original order would not come on before the review of the interim receivership. Because that was the position, no order was made as to the executorship of the will.

In the event, however, the review of the interim receivership did not come on before the hearing of this application when it was made clear to us that the applicant wished to pursue his appeal.

Section 54 of the Access to Justice Act 1999 states that rules of court may provide that any right of appeal to a county court, the High Court, or the Court of Appeal may be exercised only with permission.

CPR Part 52.3(1) provides:

“An appellant or respondent requires permission to appeal –

(a)

where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against -

(i)

a committal order;

(ii)

a refusal to grant habeas corpus; or

(iii)

a secure accommodation order made under section. 25 of the Children Act 1989; or

(b)

as provided by the relevant practice direction.

(Other enactments may provide that permission is required for particular appeals.)”

Thus on the face of it, permission is only required to appeal to the Court of Appeal where the appeal is from a judge sitting in the High Court or a county court.

The question therefore arises whether a nominated judge exercising the jurisdiction confirmed by Part VII of the 1983 Act is sitting as a judge in the High Court. In my opinion he is not. However, in order to make clear why that is so, a short historical review of the jurisdictions involved is necessary.

The origins of the modern Court of Protection date from 1842 with the creation of two Commissioners in Lunacy by the Commissioners in Lunacy Act 1842.

By s.2 of the Lunacy Act 1842 the name of the Commissioners was changed to that of Masters in Lunacy with the same rank and precedence as the Masters in Ordinary of the High Court of Chancery.

Originally the Masters in Lunacy were little more than superior clerks reporting to the Lord Chancellor who, until 1852, was the sole Judge in Lunacy and thereafter to the Lords Justices of Appeal in Chancery who were appointed to join the Lord Chancellor in exercising that jurisdiction under s 15 of the Court of Chancery Act 1852. Later, however, by s. 27(1) of the Lunacy Act 1891, the Masters in Lunacy acquired powers to make orders themselves similar to those exercised by the current Master of the Court of Protection. Section 27(1) provided that, subject to rules in lunacy, the jurisdiction of the Judge in Lunacy with regard to administration and management might be exercised by the Masters and every order of the Master in that behalf should take effect unless annulled or varied by the Judge in Lunacy.

In 1922 the number of Masters in Lunacy was reduced from two to one and the post of Assistant Master created by s1(1) of the Lunacy Act 1922. The office of the Master in Lunacy was subsequently constituted an office of the Supreme Court by s.124 of the Supreme Court of Judicature (Consolidation) Act 1925.

In 1934, the office of the Master in Lunacy was renamed the Management and Administration Department (see The Management of Patients’ Estates Rules 1934; SR & O 1934 No 269/L2r.8). However it was renamed the Court of Protection in 1947 (see The Patients’ Estates (Naming of Master’s Office) Order 1947; SR & O 1947 No 1235/L16).

The law relating to the affairs of persons suffering from mental disabilities was revised in 1959. The Mental Health Act 1959 provided by s. 100(2) that there should continue to be an office of the Supreme Court called the Court of Protection for the protection and management of the property and persons under disability and that there should be a Master and a Deputy Master of the Court of Protection appointed by the Lord Chancellor.

Section 100(2) of the 1959 Act was replaced by s.93 of the Mental Health Act 1983 which similarly provides for the continuance of the Court of Protection:

“.. for the protection and management, as provided by this Part of this Act, of the property and affairs of persons under disability; and there shall continue to be a Master of the Court of Protection appointed by the Lord Chancellor under section 89 of the Supreme Court Act 1981”.

As already indicated, until 1852 the Lord Chancellor was the sole Judge in Lunacy when the Lords Justices of Appeal in Chancery were appointed to join him in exercising that jurisdiction. By s.7 of the Supreme Court of Judicature Act (1873) Amendment Act 1875, the jurisdiction vested in the Lords Justices of Appeal in Chancery became exercisable by such judge or judges of the High Court of Justice or Court of Appeal as should be appointed under the Sign Manual. That provision was repealed and replaced by s.108 of the Lunacy Act 1890 which provided that the jurisdiction of the Judge in Lunacy should be exercised by the Lord Chancellor and such judges of the Supreme Court as might be entrusted under the Sign Manual. After the creation of the Court of Appeal in 1875, the jurisdiction was in fact exercised by the Lord Chancellor, the Master of the Rolls and the Lords Justices until 1956 when the terms of the Royal Warrant were changed so that jurisdiction was exercised by the Lord Chancellor and the judges of the Chancery Division.

By s. 100(1) of the Mental Health Act 1959, and subsequently by the s.93(1) of the Mental Health Act 1983, it was provided that the Lord Chancellor should nominate one or more judges of the Supreme Court (“nominated judges”) to exercise the jurisdiction under the Acts. Until the year 2000 the nominated judges were exclusively from the Chancery Division. However since that year all judges of the Chancery and Family Divisions have been nominated judges for the purposes of Part VII of the Mental Health Act 1983.

It appears to have been assumed within the Chancery Division that the terms of the Nomination dated 5 May 2000 (“all judges of or who may from time to time be appointed to either the Chancery Division or the Family Division of the High Court.”) are wide enough to permit the jurisdiction to be exercised by a retired High Court judge sitting under subsection 9(1) of the Supreme Court Act 1981 (as occurred in this case) or by a Deputy High Court Judge sitting under subsections 9(4)-(6A) of that Act (c.f the case in Re: W [2000] Ch 343 which related to a Deputy Judge appointed to sit as a Judge of the Chancery Division under the previous Nomination). The contrary has not been argued before us.

The High Court was created by the Supreme Court of Judicature Act 1873. However, it was specifically provided by s. 17 of that Act that there should not be transferred to or vested in the High Court of Justice by virtue of the Act

“(3)

Any jurisdiction usually vested in the Lord Chancellor or in the Lords Justices of Appeal in Chancery, or either of them, in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind.”

That jurisdiction has remained separate ever since although, since 1875, it has, as set out above, been exercised by certain appointed/ nominated judges of the High Court: c.f. Re: Cathcart [1893] 1 Ch 466 per Lord Halsbury LC at 470.

In the light of that historical distinction, it has, for instance, been necessary for s.104 of the Mental Health Act 1983 to confer upon a nominated judge the same powers as are vested in the High Court for securing the attendance of witnesses and the production of documents. That section also provides that an act or omission which, if it had occurred in the High Court, would be a contempt of court, is also made punishable by the judge in any manner in which it could have been punished by the High Court.

Similarly, rule 84(1) of the Court of Protection Rules 2001 provides that a costs order

“shall be enforceable in the same manner as an order as to costs made by the High Court”.

Finally, orders, when drawn up, are sealed by the Court of Protection and not by the High Court: see Court of Protection Rules 2001 rule 45.

The jurisdiction of the Court of Appeal to hear appeals from a nominated judge is derived from s. 105(2) of the Mental Health Act 1983.

Until 1873 appeals from the Lord Chancellor and other persons having jurisdiction in lunacy lay to the Privy Council. That jurisdiction was transferred to the newly created Court of Appeal by s.18(5) of the Supreme Court of Judicature Act 1873, which was itself replaced by s.26(2)(c) of the Supreme Court of Judicature (Consolidation) Act 1925. That part of s.26(2)(c) which dealt with such appeals was repealed by the Mental Health Act 1959, s. 149 and Schedule 8. By way of replacement s. 111(2) of the Mental Health Act 1959 provided that

“The Court of Appeal shall have the like jurisdiction as to appeals from the Lord Chancellor from any decision of a nominated judge… as they had immediately before the coming into operation of this Part of this Act as to appeals from orders in lunacy made by the Lord Chancellor or any other person having jurisdiction in lunacy and the provisions of the Supreme Court of Judicature (Consolidation) Act 1925, relating to appeals should have effect accordingly.”

On its repeal by the Mental Health Act 1983, s. 105(2) of that Act provided in similar terms for the preservation of the same jurisdiction as to appeals as the Court of Appeal had immediately before the coming into operation of the 1959 Act.

To summarise the position as a result of that historical review, the position appears to be as follows. A statutory right of appeal lies from the nominated judge to the Court of Appeal. There is a power under s.54 of the Access to Justice Act 1999 to impose a requirement to obtain permission on all appeals to the Court of Appeal. However, this requirement has been imposed by CPR 52.3 only in respect of appeals from the decision of a judge in the county court or the High Court (subject to certain immaterial exceptions). Although a nominated judge derives his position from his office as a judge of the High Court, when exercising his jurisdiction under Part VII of the Mental Health Act 1983 he is not sitting in the High Court. Accordingly the permission requirements imposed by CPR Part 52.3 do not apply to an appeal from his decision delivered in the course of such jurisdiction.

It does appear that the absence of any requirement for permission in relation to appeals from the decision of a nominated judge may be an unintended anomaly. When the former RSC Order 59 Rule 1(B) was amended on 1 January 1999 prior to the introduction of the CPR, it was amended in terms which would have required permission to be obtained for such an appeal. RSC Order 59 Rule 1 provided that:

“This order applies, subject to the provisions of these Rules with respect to particular appeals, to every appeal to the Court of Appeal (including so far as is applicable thereto, any appeal to that court from a judge of the [TCC], Master or other officer of the Supreme Court or from any Tribunal from which an appeal lies to that court under or by virtue of any enactment) not being an appeal for which other provision is made by these Rules…”

RSC Order 59 Rule 1B(1) (as amended) provided that:

“Permission is required for every appeal except an appeal against –

(a)

the making of a committal order;

(b)

the refusal to grant habeas corpus; or

(c)

an order made under section. 25 of the Children Act 1989 (secure accommodation orders)”.

Such wording was clearly wide enough to encompass appeals from the nominated judge. However, on the narrower wording adopted for CPR Part 52.3, such permission is not required.

I should perhaps add that, in his careful submission to us, Mr Rees drew to our attention a possible argument that the combined effect of CPR Part 52.3(1)(b) and paragraph 4 of ‘Practice Direction 52 – Appeals’ is such that permission is required in the present case and, in particular, that the width of the wording to the effect that the permission of the Court of Appeal or the lower court (where its rules allow) “is required for all appeals to the Court of Appeal except as provided for by Statute or Rule 52.3” is sufficient, given the provision in Rule 52.3(1)(b) that permission is required “as provided by the relevant Practice Direction”.

In my view that is a strained interpretation which does not stand examination.

I do not consider that the provisions of paragraph 4 of the Practice Direction were intended to widen the scope of Rule 52.3. In my view the general words last quoted do no more than pick up, rather than qualify or elaborate, the wording and proper construction of Rule 52.3. The relevant wording in the current Practice Direction appears to be identical to that of the original Practice Direction introduced in May 2000 at the same time as CPR 52.3 itself. That being so, as a matter of careful drafting, if it had been intended that the Practice Direction should be regarded as extending the scope of the categories of appeal specified in CPR 52.3, no doubt such an intention would have been made clear in paragraph 4.1 of the Practice Direction. It is certainly noteworthy that the editors of Civil Procedure 2005 (The White Book) do not appear to consider that the requirement for permission to appeal is wider than the provisions set out in Part 52.3(1)(a): see the note at 52.3.1

“Rule 52.3(1)(b) allows further categories of appeal requiring permission to be specified in the Practice Direction. At the moment no such categories are specified”.

As observed by Sir Andrew Morritt V-C, when giving the judgment of the court in Colley v The Council for Licensed Conveyancers [2002] 1WLR 160 at Paragraph 49:

“ The wording of Rule 52.3(1)(b), in particular the words in parenthesis, is more consistent with the requirement that the Practice Direction should make specific provision for specific appeals; and this Practice Direction does not do so”.

Finally, paragraph 4.2 of the Practice Direction states that permission is required for all appeals to the Court of Appeal except as provided for by Statute. As I have already made clear, the jurisdiction of the Court of Appeal to hear appeals from the nominated judge is derived from s.105(2) of the Mental Health Act 1983 which provides for the Court of Appeal to have a jurisdiction analogous to the earlier structure, under which no permission to appeal was required. In my view that alone is sufficient to place appeals from a nominated judge under Part VII of the Mental Health Act 1983 outside the scope of CPR Part 52.3(1)(a) and paragraph 4.2 of the Practice Direction in any event.

For those reasons, I do not consider that permission to appeal is required and the applicant is therefore at liberty to proceed with his appeal against the order of Sir Francis Ferris without such permission.

That said, however, the Official Solicitor is the person appointed to represent the interests of the patient in these proceedings. As made clear by Mr Rees on the patient’s behalf, the decision of Sir Francis Ferris to remit the matter to the Court of Protection was appropriate. The appellant is pursuing this appeal with a view to being reinstated as the patient’s executor. In the view of the Official Solicitor, whether or not the applicant is suitable to act as such depends on whether he can show himself able to act in harmony with his siblings. At the hearing before us, this again appeared to be in doubt. At the same time, the order appointing the applicant and his sister to act jointly as interim receivers was shortly to be reviewed by Assistant Master Prime. It was plainly desirable that the question of the executorship, and therefore the progress of this appeal, should be postponed until such review has taken place and a substantive receiver has been appointed.

In those circumstances I would make no order on the applicant’s application, save for a direction that, if he proceeds with his appeal, it should not be listed for hearing before the outcome of the review by Assistant Master Prime is known.

I agree.